EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Finally, the Court concluded that if the goods affected by the anticompetitive practice were acquired (purchased) in different places in a Member State (within the jurisdiction of several courts), then it seems most appropriate to confer local jurisdiction on the court of the place where the injured party is domiciled. According to the Court, the application of this criterion both fulfils the objective of proximity and ensures that litigation is cost effective. Moreover, that criterion satisfies the requirement of foreseeability, which the Court has justified on the ground that the defendants, as parties to the cartel, must know that the purchasers of the goods in question (the victims) are located on the market affected by the anticompetitive practice (the cartel collusion). In summary, in its Volvo judgment the Court introduced a cascade (cascading sequence) for determining local jurisdiction under Article 7(2) of the Brussels Regulation Recast. First, it should be examined whether the Member State has established the exclusive (causal) jurisdiction of the specialised courts to hear and decidedisputes arisingout of an infringement of competition law. If exclusive (causal) jurisdiction has not been established in the Member State, it must be established whether or not the goods affected by the anticompetitive practice were acquired (purchased) within the jurisdiction of only one single court and, if so, whether that court will have local jurisdiction to hear and decide the dispute. However, if the goods at hand were acquired (purchased) in several different places within the jurisdiction of several courts, it is then the court within whose jurisdiction the claimant (injured party) is domiciled that will have the local jurisdiction. 4. Analysis and Problem Solution In a quick reaction to the Volvo judgment, the author of the paper expressed the view that the Court’s conclusion regarding the power of a Member State to introduce exclusive (causal) jurisdiction in its national legislation seems, at first sight, paradoxical. This paradox was highlighted by the following counter question: if the determination of the local jurisdiction of the courts in a Member State is already regulated by the Brussels Regulation Recast, how is it possible that national legislation can nevertheless determine the exclusive (causal) jurisdiction of specialised courts, even though the Brussels Regulation Recast does not empower Member States to do so (Berennes, M., 2021)? However, I do not see any paradox here. In essence, it is merely a difference between exclusive (causal) jurisdiction and local jurisdiction. Moreover, the national legislature does not need empowerment from an EU regulation to determine exclusive (causal) jurisdiction (or a specialised court within its own judicial organisation), because the organisation of the judiciary falls within the exclusive competences of the Member States. In my view, the first and second criterion of the cascade in the Volvo judgment work symbiotically.

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